The United Arab Emirates Nuclear Program and Proposed U.S. Nuclear Cooperation

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1 The United Arab Emirates Nuclear Program and Proposed U.S. Nuclear Cooperation Christopher M. Blanchard Analyst in Middle Eastern Affairs Paul K. Kerr Analyst in Nonproliferation December 23, 2009 Congressional Research Service CRS Report for Congress Prepared for Members and Committees of Congress R40344

2 Summary The United Arab Emirates (UAE) has embarked on a program to build civilian nuclear power plants and is seeking cooperation and technical assistance from the United States and others. During 2008 and early 2009, the Bush Administration and the UAE government negotiated and signed a memorandum of understanding and a proposed bilateral agreement on peaceful nuclear cooperation pursuant to Section 123 of the Atomic Energy Act (AEA) of Then-U.S. Secretary of State Condoleezza Rice signed the proposed agreement on peaceful nuclear cooperation with the UAE January 15, Deputy Secretary of State James Steinberg signed a new version of the agreement May 21; the Obama Administration submitted the proposed agreement to Congress the same day. Under the AEA, Congress has the opportunity to review such a proposed agreement for 90 days of continuous session, after which the agreement becomes effective unless, during that time, Congress adopts a joint resolution disapproving the agreement and the resolution becomes law. According to the Office of the Parliamentarian of the House of Representatives, the 90 days of continuous session for the proposed U.S.-UAE agreement expired October 17, The UAE cabinet approved the agreement October 26. The agreement entered into force after the two governments exchanged diplomatic notes December 17, The agreement text states the intent of both governments to cooperate in a number of areas including, but not limited to, the development of the UAE s civilian nuclear energy use in a manner that contributes to global efforts to prevent nuclear proliferation and, the establishment of reliable sources of nuclear fuel for future civilian light water reactors deployed in the UAE. Some Members of Congress had welcomed the UAE government s stated commitments not to pursue proliferation-sensitive nuclear capabilities, such as uranium enrichment or spent fuel reprocessing. Other Members had signaled their intention to weigh the proposed bilateral agreement in light of parallel and specific concerns about the UAE s cooperation with international efforts (such as sanctions) to prevent Iran from developing nuclear weapons and ballistic missiles, as well as the potential proliferation or safety risks inherent to exporting U.S. nuclear technology. In the 111 th Congress, legislation (H.R. 364) has been introduced that would have required President Obama to certify that the UAE had taken a number of steps to strengthen its export controls and stem illicit trade with Iran before any agreement could come into effect or related U.S. exports of nuclear technology to the UAE could be approved. In 2007, the UAE adopted a stronger export control law, but has yet to issue implementing regulations for the law or to fully staff a national export control body to enforce it. In the interim, export control enforcement functions remain the responsibility of authorities in the UAE s individual emirates, in coordination with a new national interagency Committee on Commodities Subject to Import and Export Control established in April According to UAE officials, cooperation with the United States has resulted in a number of joint interdiction operations. This report provides background information on the UAE nuclear program, reviews developments to date, analyzes proposed nuclear cooperation with the United States, and discusses relevant legislative proposals and options. See also CRS Report RS21852, The United Arab Emirates (UAE): Issues for U.S. Policy, by Kenneth Katzman, and CRS Report RS22937, Nuclear Cooperation with Other Countries: A Primer, by Paul K. Kerr and Mary Beth Nikitin. Congressional Research Service

3 Contents The United Arab Emirates: Background and U.S. Relations...1 The United Arab Emirates Nuclear Program...1 Rationale...2 Development Plans...3 Current Infrastructure and Regulatory Regime...4 Proposed U.S.-UAE Cooperation...5 Memorandum of Understanding...5 Proposed Bilateral Agreement Pursuant to Section 123 of the Atomic Energy Act of Nuclear Cooperation Agreements, Approval Process, and Proposed Changes...9 Issues for Congress...10 Congressional Concerns Export Control Concerns Nonproliferation Concerns...13 Human Rights Concerns...15 Possible Diplomatic Implications...15 Legislative Developments in the 110 th and 111 th Congress...17 Appendixes Appendix. Provisions in U.S. Nuclear Cooperation Agreements with the UAE and Egypt Relevant to Establishing Standards for other Such Agreements...18 Contacts Author Contact Information...18 Congressional Research Service

4 The United Arab Emirates: Background and U.S. Relations The United Arab Emirates (UAE) is a federation of seven emirates (principalities): Abu Dhabi, Dubai, Sharjah, Ajman, Fujayrah, Umm Al Qawayn, and Ras Al Khaymah. National authority rests in the hands of a Federal Supreme Council, which is composed of the hereditary rulers of the country s constituent emirates and elects the national president from among its members. Sheikh Khalifa bin Zayed Al Nahyan, the ruler of Abu Dhabi, was elected UAE President in 2004 following the death of his father Sheikh Zayed bin Sultan Al Nahyan, who had ruled Abu Dhabi since 1966 and served as UAE President since In practice, the wealthier and more powerful emirates of Abu Dhabi and Dubai exercise the strongest influence over the country s affairs; under current convention, the ruler of oil-rich Abu Dhabi serves as the UAE President, and the ruler of the UAE s commercial hub, Dubai, serves as Vice President. The Supreme Council appoints the Prime Minister and the Council of Ministers (cabinet), which initiates legislation for ratification by the Supreme Council and the President. The United States and the UAE have enjoyed close and cooperative relations in recent years, in spite of periodic differences with regard to political reform, the Israel-Palestinian conflict, counterterrorism, and U.S. policies regarding Iraq and Iran. Military cooperation and arms sales form a key pillar of U.S.-UAE relations. The UAE hosts frequent port calls and shore visits for U.S. naval vessels and allows the U.S. military to use Al Dhafra air base in support of a variety of missions in the U.S. Central Command (CENTCOM) area of operations. In 2007 and 2008, the Bush Administration notified Congress of over $19.4 billion in potential arms sales to the UAE, including what would be the first overseas sale of the Terminal High Altitude Air Defense system. Bilateral trade has increased in recent years, with 2008 U.S. exports valued at over $15.7 billion, making the UAE the largest U.S. export market in the Middle East. The Bush Administration began negotiating a free trade agreement with the UAE in 2004, but did not conclude the negotiations. The United States does not import a significant amount of oil from the UAE. However, the UAE exports over 2 million barrels of oil per day, making it a key global energy producer. The United Arab Emirates Nuclear Program The government of the United Arab Emirates (UAE), like others in the Middle East, has announced plans to acquire nuclear energy production technology as a means of meeting projected national energy consumption needs. 1 Renewed global interest in nuclear power has led some experts and observers to express concern that the projected spread of nuclear technology in 1 The governments of Turkey, Egypt, Jordan, Saudi Arabia, and Algeria have announced their intent to acquire nuclear energy production capabilities; their respective programs have moved forward in recent years with varying degrees of specificity and commitment. To date, Turkey, Jordan, and Egypt appear to have made the most progress toward their stated goals of constructing and operating domestic nuclear power plants. Like the UAE, their plans do not envision operational plants before Turkey and Egypt have active peaceful nuclear cooperation agreements with the United States pursuant to Section 123 of the Atomic Energy Act (AEA) of Congressional Research Service 1

5 coming years could contribute to nuclear proliferation. In the Middle East, added scrutiny is often applied to the motives and choices of regional actors regarding nuclear technology because of concern that Iran s nuclear program and Israel s presumed nuclear weapons may motivate other regional governments to seek nuclear technology for strategic or military purposes. Other concerns about nuclear safety relate to potential terrorist attacks or political instability, both of which have threatened some regional countries in recent years. UAE officials report that they have considered these potential risks carefully, and have announced plans and measures intended to address proliferation and security concerns. While UAE officials stress that final decisions about the scope of the nuclear program and potential international participation have not been made, plans for the program are at an advanced stage and are awaiting final legal authorization. Policymakers and advisers in the government of Abu Dhabi, in consultation with representatives from the other six emirates, have set out an ambitious agenda for the program and are guiding its preliminary implementation. In April 2008, the UAE government issued a policy statement 2 that provides a rationale for the country s perceived need for nuclear energy and states guiding principles for the nuclear energy program. Nascent operating and regulatory bodies have been formed and are awaiting the passage of authorizing legislation to begin their formal work. The end goal of the program, according to officials and related documents, is to build and operate a fleet of nuclear power plants to generate electricity for the UAE, supported by advanced, indigenously managed safety, regulatory, and security agencies. The UAE government pledged $10 million in August 2008 toward an international nuclear fuel bank proposed by the Nuclear Threat Initiative, a non-governmental organization. The bank would be administered by the International Atomic Energy Agency (IAEA), 3 which would also implement safeguards on any future UAE nuclear facilities. Mr. Hamad Al Kaabi, UAE Special Representative for International Nuclear Cooperation, explained August 7 that the contribution is part of the UAE s policy to support multilateral fuel supply efforts a policy consistent with the country s decision to rely on foreign fuel suppliers. Rationale UAE officials estimate that their country must expand its power generation and transmission capacity from the current level of 16 gigawatts to 40 gigawatts by 2020 in order to meet projected demand increases, which they estimate will continue growing at a 9% annual rate. In spite of the recent slowdown in global and domestic economic activity, representatives of the UAE nuclear program believe that the energy demand projections they are using to justify and plan the acquisition of nuclear plants remain accurate, particularly in light of planned industrial and commercial projects in energy-intensive sectors in the emirate of Abu Dhabi. 4 To date, UAE 2 Policy of the United Arab Emirates on the Evaluation and Potential Development of Peaceful Nuclear Energy, released April 20, Available at 3 For more detail about the proposal, see CRS Report RL34234, Managing the Nuclear Fuel Cycle: Policy Implications of Expanding Global Access to Nuclear Power, coordinated by Mary Beth Nikitin. 4 CRS meeting with Abu Dhabi Executive Authority and Emirates Nuclear Energy Corporation representatives, Abu Dhabi, December 14, Large scale petrochemicals and aluminum production projects are already underway in Abu Dhabi s Kalifa Industrial Zone. See Chris Stanton, Taweelah to host chemical city, The National (Abu Dhabi), (continued...) Congressional Research Service 2

6 officials and representatives have not publicly shared economic cost and energy use analyses referred to in briefings on their nuclear program. In arguing for nuclear energy as a solution to the country s projected energy needs, the UAE government policy statement concludes that known volumes of natural gas that could be made available to the nation s electricity sector would be insufficient to meet future demand. 5 The UAE currently exports roughly 600 million standard cubic feet per day of natural gas to Japan under long-term supply arrangements and imports roughly 2 billion cubic feet of natural gas from Qatar via the underwater Dolphin pipeline system. 6 Similarly, UAE officials believe that crude oil and diesel could be logistically viable sources of energy, but would impose high economic opportunity costs (as a result of lost export revenue) and environmental costs. Officials determined that coal could be a more economical solution, but would have even greater environmental costs and, as an import, also would raise concerns for the UAE about the security of supply. UAE officials believe that solar and wind energy sources could supply only 6-7% of peak electricity demand by 2020, even after aggressive development. Development Plans The end goal of the program, according to officials and related documents, is to build and operate a fleet 7 of nuclear power plants to generate electricity for the UAE, supported by advanced, indigenously managed safety, regulatory, and security agencies that will be developed over time and with outside assistance. The UAE government is seeking to bring its first nuclear power plant online by 2017 along with required facilities and equipment for safety, storage, and system management. Under current plans, capacity would expand thereafter to include multiple nuclear power plants. Reports suggest that the UAE is moving forward with a contract bidding and award process, with the goal of selecting a primary contractor or team in late UAE officials reportedly plan to build in contractor incentives for on-time delivery of a turnkey plant before the ambitious 2017 deadline. 8 No specific decisions have been made regarding the source of nuclear fuel for the planned nuclear reactor or on handling spent reactor fuel. (...continued) May 4, 2008; and, Chris Stanton and Ivan Gale, EMAL smelter remains on schedule, The National (Abu Dhabi), January 13, Policy of the United Arab Emirates on the Evaluation and Potential Development of Peaceful Nuclear Energy, released April 20, Available at 6 One economic press report suggested that the UAE may be paying as little as $1.25/million BTU of natural gas. Middle East Economic Digest, UAE purchases gas from Dolphin pipeline at reduced rate, May 16, For more information on the pipeline, see 7 Correspondence between CH2M Hill and U.S. Department of Energy, National Nuclear Security Administration, June CRS meeting with Abu Dhabi Executive Authority and Emirates Nuclear Energy Corporation representatives, Abu Dhabi, December 14, Congressional Research Service 3

7 Current Infrastructure and Regulatory Regime The UAE currently has no nuclear material under IAEA safeguards. It signed the NPT in 1995 and completed a Small Quantities Protocol in 2003, which applies to non-nuclear weapons states that do not have significant nuclear programs or nuclear material. The UAE also has undertaken Technical Cooperation projects with the Agency, some of which are directly related to nuclear electricity generation. For example, a project begun in 1977 advised the government on the establishment of a nuclear energy administration. A 1984 project focused on uranium exploration. More recently, a Technical Cooperation project approved in 2005 was designed to assess the technical and economic feasibility of a nuclear power and desalination plant. Active IAEA Technical Cooperation projects with the UAE focus on human resources development for atomic energy, feasibility studies for waste management, environmental monitoring, and nuclear accident early warning preparedness and response. 9 A national law authorizing the program was adopted by the Federal Supreme Council in early October According to the State Department, the law, Federal Law 6 of 2009, prohibits uranium enrichment and spent fuel reprocessing, creates a Federal Authority for Nuclear Regulation (FANR), and develops a nuclear material licensing and control system. 10 UAE government representatives report that the UAE sought and received input on its draft nuclear law from the United States, United Kingdom, Japan, Korea, and France. 11 In conjunction with the issuance of the law, a Board of Management for the FANR was announced, and the board named former U.S. Nuclear Regulatory Commission Executive Director for Operations Dr. William Travers as the FANR s first Director General. A nuclear energy policy advisory board reportedly has been formed, and UAE officials report that its members, though unnamed, include leading international nuclear energy industry officials. 12 The UAE has also adopted a law governing export controls, but has not yet issued implementing regulations (see section on Export Control Concerns ). The UAE has also stated that it intends to establish a separate nuclear liability regime for third-party compensation modeled on the four as-yet un-ratified IAEA instruments on nuclear liability. 13 Some limited consulting and contracting between U.S. firms and the UAE related to the UAE s proposed nuclear program has already taken place. In August 2008, Virginia s Thorium Power Ltd. signed two consulting and advisory services contracts related to the establishment of the Abu 9 See IAEA-Technical Cooperation, National and Regional Asia and the Pacific Projects query page at 10 Statement of Vann H. Van Diepen, Acting Assistant Secretary, State Department Bureau of International Security and Nonproliferation before the Senate Foreign Relations Subcommittee on Near Eastern and South and Central Asian Affairs, October 7, CRS analyst interview with UAE official, Washington, DC, March 6, UAE Minister of Foreign Affairs Shaykh Abdullah bin Zayed Al Nahyan, Why Go Nuclear? Bulletin of the Atomic Scientists, September/October 2008; and, CRS meeting with Abu Dhabi Executive Authority and Emirates Nuclear Energy Corporation representatives, Abu Dhabi, December 14, Policy of the United Arab Emirates. The four instruments are: the Vienna Convention on Civil Liability for Nuclear Damage, the Protocol to Amend the Vienna Convention on Civil Liability, the Joint Protocol on the Application of the Vienna and Paris Conventions, and the Convention on Supplementary Compensation for Nuclear Damage. Congressional Research Service 4

8 Dhabi-based Emirates Nuclear Energy Corporation (ENEC) 14 and the FANR. In October 2008, ENEC announced that Colorado s CH2M Hill, Inc. was selected for a 10-year contract as the managing agent for the evaluation and design stage of the nuclear energy program. Pennsylvaniabased Rizzo and Associates Inc., has been hired to survey potential nuclear plant sites in the UAE. The contracts were signed with the government of Abu Dhabi. Proposed U.S.-UAE Cooperation Emirates Nuclear Energy Corporation (ENEC) officials have expressed interest in establishing joint ventures with U.S. firms for the design, construction, and operation of nuclear power plants. ENEC also is seeking to sign contracts for the specialized training of operations, security, and regulatory personnel in order to expand the indigenous human capital base within the UAE for independent management of planned nuclear facilities. During 2008 and early 2009, the Bush Administration and the UAE government negotiated and signed a Memorandum of Understanding (MOU) (see below) and a proposed bilateral agreement on peaceful nuclear cooperation pursuant to Section 123 of the Atomic Energy Act (AEA) of The nuclear cooperation agreement entered into force after the two governments exchanged the relevant diplomatic notes December 17, Memorandum of Understanding On April 21, 2008, the United States and the UAE signed a MOU Concerning Cooperation in Peaceful Uses of Nuclear Energy. The MOU states that the two countries intend to cooperate, subject to their respective national laws, in a variety of nuclear activities. The MOU is a statement of intent regarding future cooperation, but is not legally binding. Although such memoranda are not prerequisites for concluding future nuclear cooperation agreements, the State Department has argued that they are useful tools for cooperating with countries which are interested in the responsible use of nuclear energy because they create opportunities to solicit specific commitments with regard to safeguards and technology choices. An April 21, 2008, State Department press release described the U.S.-UAE MOU as a tangible expression of the United States desire to cooperate with states in the Middle East, and elsewhere, that want to develop peaceful nuclear power in a manner consistent with the highest standards of safety, security and nonproliferation. A similar MOU was concluded with Saudi Arabia in May Proposed Bilateral Agreement Pursuant to Section 123 of the Atomic Energy Act of 1954 On May 21, 2009, Deputy Secretary of State James Steinberg and UAE Ambassador to the United States Yousef Al Otaiba signed the text of a bilateral agreement on peaceful nuclear cooperation. Although then-secretary of State Condoleezza Rice and UAE Foreign Minister Abdullah bin Zayed Al Nahyan signed a similar agreement this past January, the two governments reopened the text for negotiation after the Obama administration took office. 14 See ENEC homepage at Congressional Research Service 5

9 Under the Atomic Energy Act of 1954 (AEA), all significant nuclear cooperation with other countries requires a peaceful nuclear cooperation agreement. Such agreements, which require congressional approval, are framework agreements which set the terms of reference and provide authorization for cooperation. The AEA includes requirements for an agreement s content, presidential determinations, and other supporting information to be submitted to Congress, conditions affecting the implementation of an agreement once it takes effect, as well as procedures for Congress to consider and approve the agreement (see Nuclear Cooperation Agreements, Approval Process, and Proposed Changes below). The agreement would enter into force on the date when the two governments exchange diplomatic notes informing each other that they have completed all applicable requirements. As noted, the two governments exchanged these notes December 17, According to the proposed U.S.-UAE agreement, the two countries intend to cooperate on a variety of nuclear activities, including Developing requirements for grid-appropriate power reactors and fuel service arrangements; Promoting the establishment of a reliable source of nuclear fuel for future civil light water nuclear reactors; Civil nuclear energy training, human resource and infrastructure development; Cooperating on nuclear security and nonproliferation, including physical protection, export control and border security; Developing the UAE s civil nuclear energy use in a manner that supports global efforts to prevent nuclear proliferation, including, for example, the Global Nuclear Energy Partnership; 15 Applying radioisotopes and radiation in industry, agriculture, medicine and the environment; Managing radioactive waste and spent fuel; and Identifying uranium mining and milling resources. According to the agreement, cooperation could include Exchange of scientific and technical information and documentation; Exchange and training of personnel; Organization of symposia and seminars; Provision of relevant technical assistance and services; Transfers of material, equipment and components. 15 For more information on the Partnership, see CRS Report RL34234, Managing the Nuclear Fuel Cycle: Policy Implications of Expanding Global Access to Nuclear Power, coordinated by Mary Beth Nikitin. Congressional Research Service 6

10 The agreement contains a variety of provisions which are required by the AEA and are designed to ensure that the UAE s nuclear program remains exclusively for peaceful purposes. It also includes two provisions which are not found in any other U.S. nuclear cooperation agreement. First, the agreement provides that the UAE bring into force its Additional Protocol to its IAEA safeguards agreement before the United States licenses exports of nuclear material, equipment, components, or technology pursuant to the agreement. The IAEA Board of Governors approved the Protocol March 3. The UAE signed it April 8, but has not yet brought it into force. Such protocols give IAEA officials greater access to an NPT state s nuclear-related facilities and information. Second, the agreement states that the UAE shall not possess sensitive nuclear facilities within its territory or otherwise engage in activities within its territory for, or relating to, the enrichment or reprocessing of material, or for the alternation in form or content (except by irradiation or further irradiation or, if agreed by the Parties, post-irradiation examination) of plutonium, uranium 233, high enriched uranium, or irradiated source or special fissionable material. A May 21 letter to Congress, which President Obama submitted along with the agreement, described this provision as a legally binding obligation. According to the Nuclear Proliferation Assessment Statement submitted with the agreement, this provision survives any termination of the Agreement so long as nuclear items subject to the Agreement remain in the territory of the UAE or under its jurisdiction or control anywhere. Furthermore, the agreement provides the United States with the right to terminate nuclear cooperation and to require the return of any nuclear material, equipment or components... and any special fissionable material produced through their use if, after the agreement s entry into force, the UAE possesses sensitive nuclear facilities within its territory or otherwise engages in activities within its territory relating to enrichment of uranium or reprocessing of nuclear fuel. 16 Another provision, which is not typically included in nuclear cooperation agreements, requires both parties to give due consideration... to non-proliferation and physical protection aspects when selecting a storage facility for special fissionable material. 17 According to the agreement, the United States may also require that any special fissionable material that has been transferred to the UAE or used in or produced through the use of any material or equipment transferred pursuant to the agreement be transferred to either the United States or an unspecified third country if Washington considers that exceptional circumstances of concern from a nonproliferation standpoint so require. A 1981 U.S. nuclear cooperation agreement with Egypt contains a similar restriction. 16 Uranium enrichment and reprocessing spent nuclear fuel are the dual-use nuclear activities of greatest proliferation concern. Uranium enrichment can produce low-enriched uranium for nuclear reactor fuel or highly enriched uranium, which can be used as fissile material in nuclear weapons. Reprocessing spent nuclear fuel separates plutonium from that fuel. Plutonium can also be used as fissile material in nuclear weapons. 17 According to the agreement text, special fissionable material means (1) plutonium, uranium 233, or uranium enriched in the isotope 235, or (2) any other material so designated by agreement of the Parties. A similar provision is contained in a 1981 U.S. nuclear cooperation agreement with Egypt. Congressional Research Service 7

11 It is worth noting that an Agreed Minute to the U.S.-UAE agreement includes a provision which establishes its conditions as minimum standards for future such U.S. agreements in the Middle East. Stating that the fields of cooperation, terms and conditions accorded by the U.S.-UAE agreement shall be no less favorable in scope and effect than those which may be accorded, from time to time, to any other non-nuclear-weapon State in the Middle East in a peaceful nuclear cooperation agreement, the Minute explains that, in the event that Washington concludes a morefavorable agreement with another regional government, the United States will, at the UAE s request, consult with the UAE regarding the possibility of amending the agreement in order to make its terms equally favorable to the new agreement. A similar provision in the U.S.-Egypt agreement meant that the United States had to ensure that the agreement with the UAE would be at least as stringent. Since the latter agreement is more stringent, it has established a higher standard for future such U.S. agreements in the region. 18 (See the Appendix). Additionally, the U.S.-UAE agreement provides a potential way for the UAE to transfer spent nuclear fuel to other countries. The Agreed Minute states that the UAE may transfer spent nuclear fuel to France or the United Kingdom for storage or reprocessing. In the past, such advance U.S. consent has been given only to Japan, Switzerland, and Norway. 19 The transferred material is to be held within EURATOM, and any separated plutonium cannot be returned to the UAE without additional U.S. consent According to the agreement, approval for such UAE spent fuel transfers would be subject to several conditions, including the UAE s adherence to its declared policy of refraining from enrichment and reprocessing. The UAE may also not engage in fabricating nuclear fuel containing plutonium. Additionally, the United States can terminate an agreement regarding spent fuel transfers if Washington decides that the UAE has not met one of the relevant conditions or if the United States considers that exceptional circumstances of concern from a non-proliferation or security standpoint so require. The agreement explains that [s]uch circumstances include, but are not limited to, a determination... that the approval cannot be continued without a significant increase of the risk of proliferation or without jeopardizing its national security. 18 CRS Analyst interview with State Department official March 9, U.S. agreements with Finland and Sweden also granted such consent rights, but those agreements have been replaced by the 1996 U.S.-EURATOM agreement. 20 Japan and Switzerland have received advance consent to take back recovered plutonium for use in their civil nuclear programs. 21 CRS Analyst interviews with State Department official March 12, 2009 and former State Department official Fred McGoldrick March 10, Congressional Research Service 8

12 Nuclear Cooperation Agreements, Approval Process, and Proposed Changes As noted, all significant nuclear cooperation 22 with other countries requires a peaceful nuclear cooperation agreement. 23 Section 123 of the Atomic Energy Act (AEA) specifies that proposed nuclear cooperation agreements are to include the terms, conditions, duration, nature, and scope of cooperation. It also requires that any such agreement meet a series of nonproliferation criteria and that the President submit any such agreement to the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations. The Department of State is required to provide the President an unclassified Nuclear Proliferation Assessment Statement (NPAS), which the President is to submit to the committees of referral along with the agreement. The State Department also is required to provide a classified annex to the NPAS, prepared in consultation with the Director of National Intelligence. The NPAS is meant to explain how a proposed agreement would meet the aforementioned nonproliferation criteria. The President also must make a written determination that the performance of the proposed agreement will promote and will not constitute an unreasonable risk to, the common defense and security. President Bush issued such a determination November 14, President Obama issued an identical determination May 19, 2009, and submitted the agreement, along with the unclassified NPAS, May 21. President Obama also submitted the classified NPAS. Under the AEA, Congress has the opportunity to review a 123 agreement for two time periods totaling 90 days of continuous session. 25 The President must submit the text of the proposed nuclear cooperation agreement, along with required supporting documents (including the unclassified NPAS) to the House Foreign Affairs Committee and the Senate Foreign Relations Committee. The President is to consult with the committees for a period of not less than 30 days of continuous session. After this period of consultation, the President is to submit the agreement to Congress, along with the classified annex to the NPAS and a statement of his approval of the agreement and determination that it will not damage the national security interests of the United States. This action begins the second period, which spans 60 days of continuous session. In practice, the President has submitted the agreement to Congress, along with the unclassified NPAS, its classified annex, and his approval and determination, at the beginning of the full 90- day period. The 60-day period has been considered as following immediately upon the expiration of the 30-day period. If the President has not exempted the agreement from any requirements of Section 123a., it becomes effective at the end of the 60-day period unless, during that time, 22 Significant nuclear cooperation includes the transfer of U.S.-origin special nuclear material subject to licensing for commercial, medical, and industrial purposes. The term special nuclear material, as well as other terms used in the statute, is defined in 42 U.S.C Special nuclear material means (1) plutonium, uranium enriched in the isotopes 233 or 235, and any other material that is determined to be special nuclear material, but does not include source material, or (2) any material artificially enriched by any of the foregoing, but does not include source material. 23 For a primer on such agreements, which are frequently referred to as 123 agreements, see CRS Report RS22937, Nuclear Cooperation with Other Countries: A Primer, by Paul K. Kerr and Mary Beth Nikitin. 24 Presidential Determination No , November 14, When calculating periods of continuous session under the AEA, every calendar day is counted, including Saturdays and Sundays. Only days on which either chamber has adjourned for more than three days pursuant to the adoption of a concurrent resolution authorizing the adjournment do not count toward the total. If Congress adjourns its final session sine die, continuity of session is broken, and the count must start anew when it reconvenes. Congressional Research Service 9

13 Congress adopts a joint resolution disapproving the agreement and the resolution becomes law. 26 The proposed agreement with the UAE is not an exempt agreement. In the 110 th Congress, some Members of Congress proposed several amendments to the AEA that would have changed the AEA s procedures for the negotiation and approval of peaceful nuclear cooperation agreements. 27 For example, H.R. 7316, which Representative Ileana Ros-Lehtinen introduced in December 2008, would have required Congress to enact a joint resolution of approval before any peaceful nuclear cooperation agreement could become effective. As noted above, such agreements currently become effective unless Congress enacts a joint resolution of disapproval. The bill also proposed adding a section to the AEA which would have required the President to keep the House Foreign Affairs Committee and the Senate Foreign Relations Committee fully and currently informed of any initiative or negotiations relating to a new or amended agreement for peaceful nuclear cooperation...prior to the President s announcement of such initiative or negotiations. The proposed section also would have mandated periodic Presidential consultation with the committees about the progress of negotiations concerning such agreements. In the 111 th Congress, H.R. 547, which Representative Ros-Lehtinen introduced January 15, 2009, contains the same language. Issues for Congress Although the final text of the proposed U.S.-UAE nuclear agreement was agreed in early November 2008, the Bush Administration, reportedly at the UAE s request, did not submit the agreement to the 110 th Congress. 28 After the Obama Administration took office, the UAE agreed to reopen the text for negotiation. On May 21, 2009, the Administration submitted the agreement to Congress to begin the consultation periods required under the AEA. Some Members of Congress welcomed the UAE government s stated commitments to foreswear proliferationsensitive nuclear capabilities, such as uranium enrichment or spent fuel reprocessing. Other Members signaled their intention to evaluate the proposed bilateral agreement in light of parallel and specific concerns about the UAE s cooperation with international efforts to prevent Iran from developing nuclear weapons and the potential proliferation or safety risks inherent to exporting U.S. nuclear technology. 29 Broader diplomatic implications of the proposed agreement also were being weighed by concerned parties on all sides. The agreement, however, entered into force following the December 17, 2009 exchange of diplomatic notes because the 90 days of continuous session expired on October 17, State Department spokesperson Ian Kelly told 26 The AEA allows the President to exempt a proposed nuclear cooperation agreement from the nonproliferation criteria specified in Section 123. Such agreements have different procedures for Congressional review. Since the proposed agreement with the UAE is apparently a non-exempt agreement, those procedures are not discussed here. 27 For additional details on these proposals, see CRS Report RS22937, Nuclear Cooperation with Other Countries: A Primer, by Paul K. Kerr and Mary Beth Nikitin. 28 UAE, USA Complete Negotiations on Peaceful Nuclear Energy Agreement, Emirates News Agency, December 15, 2008; and, Mark Hibbs, US-UAE Cooperation Pact Initialed; Approval Left to Obama, New Congress, Nucleonics Week, November 20, See, for example, a November 24, 2008, statement from Representative Brad Sherman, a January 15, 2009, letter from Representative Edward Markey, and an April 6, 2009, letter from Markey, Sherman, and Representative Ileana Ros-Lehtinen. Congressional Research Service 10

14 reporters October 22 that the United States has completed all... internal procedures for the agreement to enter into force. The UAE cabinet approved the agreement October Congressional Concerns Export Control Concerns Since 2001, the UAE has been under increased U.S. scrutiny as an alleged transshipment point for military and dual-use exports to Iran, as an alleged hub of operations for weapons proliferators, 31 and as an alleged transit zone and financial conduit for terrorists and money launderers. At present, particular attention remains focused on U.S. concerns about the UAE government s willingness and ability to halt transfers of militarily sensitive technology to Iran. Since late 2008, some Members of Congress have claimed that the UAE has not acted sufficiently to halt transfers of militarily sensitive technology to Iran and should not be able to conclude a nuclear cooperation agreement with the United States until the UAE government has taken additional measures against Iranian procurement activities of concern. Administration and UAE officials highlight steps taken by the UAE in recent years to strengthen export controls and to take action against entities suspected of illicit proliferation activities, including targets associated with Iran. The United States government has stated publicly that some UAE-based entities are involved in Iranian weapons-related procurement activities. For example, an October 2008 Department of Justice fact sheet states that eight companies, five of which are based in the UAE, were charged the previous month with crimes related to their participation in exporting dual-use items to Iran. Additionally, two men were indicted in July 2008 for participation in a conspiracy to export U.S.-made military aircraft parts to Iran via a company based in the UAE, according to the fact sheet. 32 Evidence also suggests that UAE-based entities are involved in procurement activities connected to Iran s nuclear and ballistic missile programs. For example, the Department of the Treasury designated two such entities under Executive Order 13382, which freezes assets under U.S. jurisdiction belonging to designated foreign entities engaged in activities related to the proliferation of Weapons of Mass Destruction (WMD). Specifically, the Treasury Department designated Oriental Oil Kish in October 2007 for unspecified proliferation activities. Oriental Oil Kish is an entity affiliated with Iran s Islamic Revolutionary Guard Corps (IRGC), a department press release said, adding that the IRGC develops and tests ballistic missiles. In September 2008, the Treasury Department similarly designated Oasis Freight Agencies as a company affiliated with the Islamic Republic of Iran Shipping Lines (IRISL). Adam Szubin, 30 Cabinet Approves UAE-U.S. Agreement on Peaceful Nuclear Cooperation, Emirates News Agency, October 26, In connection with revelations of illicit sales of nuclear technology to Iran, Libya, and North Korea by Pakistan s nuclear scientist A.Q. Khan, Dubai was named as a key transfer point for Khan s shipments of nuclear components. For more detail, see CRS Report RL32745, Pakistan's Nuclear Proliferation Activities and the Recommendations of the 9/11 Commission: U.S. Policy Constraints and Options. 32 Fact Sheet: Major U.S. Export Enforcement Prosecutions During Past Two Years, U.S. Department of Justice, October 28, Congressional Research Service 11

15 director of the department s Office of Foreign Assets Control, indicated during a September 10, 2008, press conference that IRISL has procured items for Iran s ballistic missile programs. The Treasury Department has also designated other UAE-based entities under the same executive order because of their ties to Iranian banks which, according to the United States, are involved in proliferation activities. For example, the Department designated Melli Investment Holding International and BMIIC International General Trading Ltd. in March 2009 because of their ties to Iran s Bank Melli, which, according to a March 3 Treasury Department statement, has been involved in procurement activities and other forms of support for Iran s nuclear and missile programs. More recently, the Treasury Department announced May 12, 2009, that it had specifically designated several UAE-based branches of that bank. 33 Additionally, the Department the same day designated the UAE office of Persia International Bank, a subsidiary of Bank Mellat. The Department stated in October 2007 that Bank Mellat has provided banking services in support of Iran s nuclear entities. To place UAE-based entities proliferation role in context, the U.S. government had, as of March 3, 2009, designated approximately 107 non-uae companies, based in Iran and elsewhere, under Executive Order 13382, though not necessarily for exports to Iran. Moreover, the UAE is not the only conduit for suspicious goods destined for Iran; Tehran has also used a network based in Malaysia for procuring dual-use items. Concerns about suspicious transfers to Iran prompted U.S. action in 2007 to encourage the UAE to improve its national export control system. In February 2007, the U.S. Department of Commerce released an advanced notice of proposed rule-making that would have created a new export control designation known as Country Group C that would have established license requirements on exports and re-exports to countries that represent a diversion or transshipment risk for goods subject to the Export Administration Regulations. 34 Although no countries were mentioned in the notice, the proposal was widely considered to be directed at the UAE. 35 In August 2007, the UAE adopted a stronger national export control law, but, as of September 2009, the government had yet to issue implementing regulations for the law or to fully staff a national export control body to enforce it. In the interim, export control enforcement functions remain the responsibility of authorities in the UAE s individual emirates, and are being carried out in coordination with a newly established national interagency Committee on Commodities Subject to Import and Export Control. The Committee was authorized in April The Foreign Ministry serves as the chair, and other members include the Interior Ministry, the Armed Forces, the Ministry of Economy, and the Federal Customs Authority. The Committee met in May 2009 and reportedly discussed creating a mechanism to implement the law. 36 Minister of State for Foreign Affairs Dr. Anwar Mohammed Gargash said in a statement released in conjunction with the meeting that, We will not compromise on issues of security and our export control reflects our intention to ensure tough safeguards over the movement of sensitive materials. UAE 33 Previously, all worldwide offices of Bank Melli had been designated, but they were not named specifically. 34 Country Group C: Destinations of Diversion Control, Advanced Notice of Proposed Rulemaking, 72 Federal Register 8315, February 26, Inside U.S. Trade, UAE Drafts New Export Control Law With U.S. Help, Vol. 25, No. 11, March 16, Mahmoud Habboush, Arms export control committee meets, The National (Abu Dhabi), May 10, Congressional Research Service 12

16 Ambassador to the United States Yousef Al Otaiba described the law as a work in progress during a June 3, 2009, briefing. U.S. cooperation with national and emirate level officials on proliferation issues appears to be strong. A bilateral nonproliferation working group meets annually to review and discuss nonproliferation issues of shared concern. In a September 2008 letter to then-u.s. Secretary of Commerce Carlos Gutierrez, Ambassador Otaiba detailed six joint and unilateral interdictions on Iran-bound ships completed since June More recently, the UAE seized arms and related materials from a ship en route to Iran, according to Australian officials. The UAE conducted the seizure, which reportedly took place in late July or early August 2009, pursuant to UN Security Council resolution The UN committee charged with monitoring implementation of the sanctions is investigating the matter, U.S. Permanent Representative to the United Nations Ambassador Susan Rice told reporters September 14. Otaiba s letter further stated that the UAE fully supports and has vigorously enforced United Nations resolutions barring the shipment of sensitive materials and technologies to Iran. The UAE also has closed dozens of international and local companies involved in the transshipment of dual-use and controlled materials, according to the letter, which also highlighted the government s participation in several U.S. security initiatives, including the Container Security Initiative, the Proliferation Security Initiative, and the Department of Energy Megaports Initiative. UAE officials report they remain committed to fully implementing the 2007 law at the national level, including clarifying roles and responsibilities for export control enforcement. The UAE s Central Bank has also taken steps to pressure Iran. According to the February 2009 International Narcotics Control Strategy Report, the bank has ordered financial institutions to cease transfers on behalf of designated entities and to refrain from entering into new commitments for grants, financial assistance, and concession loans to the Iranian Government. The United Kingdom s Export Control Organization has also named two entities located in the UAE, Mileace and Tammam Trading, as possibly being involved in procurement activities for Iran s WMD programs. 39 Nonproliferation Concerns The most proliferation-sensitive part of a nuclear power program is the capability to produce fuel for nuclear reactors, either by enriching uranium or reprocessing spent nuclear fuel to obtain plutonium. Low-enriched uranium is used as fuel for nuclear reactors. Both highly enriched 37 Letter from UAE Ambassador to the United States Yousef Al Otaiba to U.S. Secretary of Commerce Carlos Guitierrez, September 17, Brendan Nicholson, Australian Ship in Arms Row, The Age, August 31, 2009; Rod Mcguirk, Australia Probes North Korean Weapons Shipment, The Associated Press, August 30, For additional information on the Security Council resolution, see CRS Report R40684, North Korea s Second Nuclear Test: Implications of U.N. Security Council Resolution 1874, coordinated by Mary Beth Nikitin and Mark E. Manyin. 39 Iran List - WMD End-Use Control: Licence Applications for Iran, updated August 28, Available at page29307.html. Congressional Research Service 13

17 uranium and plutonium can be used as fuel in some types of nuclear reactors but are also used as fissile material in nuclear weapons. The dual-use nature of nuclear fuel facilities frequently generates concern that ostensibly peaceful facilities may aid nuclear weapons programs. The April MOU states that the UAE has agreed to the policy commitments described earlier in its April 2008 policy statement, which are designed to boost confidence that the state s nuclear program is exclusively for peaceful purposes. For example, the statement indicates that the UAE will forgo domestic enrichment and reprocessing capabilities in favor of long-term commitments of the secure external supply of nuclear fuel. Moreover, as noted above, the nuclear cooperation agreement s text states that the United States can end nuclear cooperation with the UAE if it acquires enrichment or reprocessing facilities. Without such capabilities, a nuclear program poses little proliferation risk. IAEA Director-General Mohamed ElBaradei explained in an August 2007 interview: One nuclear reactor by itself means nothing, you are still far from having an atom bomb. I am more worried when a country has a plant for industrial-scale uranium enrichment In this case it can make a nuclear bomb within a few months. 40 As noted above, the U.S. State Department reports that the UAE s new nuclear regulatory law (Federal Law 6 of 2009) prohibits domestic enrichment and reprocessing. 41 As a party to the nuclear Nonproliferation Treaty (NPT), any future UAE nuclear facilities would be subject to IAEA safeguards. 42 Additionally, the UAE agreed to conclude an Additional Protocol to its safeguards agreement. As noted, such protocols give IAEA officials greater access to an NPT state s nuclear-related facilities and information. The UAE currently has a Small Quantities Protocol to its safeguards agreement, but, according to the nuclear cooperation agreement, will terminate that Protocol before the United States issues export licenses for the export of nuclear material, equipment, components, or technology pursuant to the cooperation agreement. 43 It is also worth noting that the UAE s 2008 policy statement on its nuclear program states that the government plans to rely on light-water reactors, which are considered among the most proliferation-resistant, partly because of the difficultly in producing and obtaining weapons-grade plutonium without detection. Moreover, a May 2008 International Institute for Strategic Studies report points out that no successful nuclear-weapons program has ever relied on commercial 40 We re approaching the brink: PROFIL Interview with Mohamed El Baradei. Profil, August 8, Available at 41 Statement of Vann H. Van Diepen, Acting Assistant Secretary, State Department Bureau of International Security and Nonproliferation before the Senate Foreign Relations Subcommittee on Near Eastern and South and Central Asian Affairs, October 7, For more information about IAEA safeguards, see CRS Report RL33865, Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, by Amy F. Woolf, Mary Beth Nikitin, and Paul K. Kerr. The UAE has had an IAEA safeguards agreement in force since The text is available at Infcircs/2003/infcirc622.pdf. 43 Some NPT state-parties with small quantities of fissionable materials have concluded a Small Quantities Protocol to their IAEA safeguards agreements. Certain IAEA verification requirements are suspended for such states. Congressional Research Service 14